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Website Immune From Liability for Images Posted by Others, Ninth Circuit Declares
Says Liability Only Exists If Website, Itself, Engages in Child Sex Trafficking
By a MetNews Staff Writer
A social media platform is immune from liability under the Communications Decency Act for the display of sexually explicit images and videos of minors, the Ninth U.S. Circuit Court of Appeals held yesterday, declaring that an exception is not applicable because the website was merely a repository of postings by users and did not propagate the matter.
Then-District Court Judge James V. Selna (now a senior judge) dismissed a class action against Reddit, Inc., which operates a website containing pornography, relying upon §230 of the Communications Decency Act which generally shields interactive computer services providers from liability for content it does not generate. The plaintiffs invoked the Allow States and Victims to Fight Online Sex Trafficking Act of 2018 (“FOSTA”).
That act, in 18 U.S.C. §1591, criminalizes the sex trafficking of children and §1595 creates private causes of action for violations.
Circuit Judge Milan D. Smith Jr. says that FOSTA overrides §230 immunity where the “conduct underlying the claim” violates §1591. He wrote:
“We hold that for a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.”
The judge added that “this requires that the defendant knowingly benefited from knowingly facilitating sex trafficking,” which, he noted, was not alleged.
District Court Judge Gershwin A. Drain of the Eastern District of Michigan, sitting by designation, joined in Smith’s opinion. Circuit Judge Ryan D. Nelson said in a concurring opinion that Smith needlessly discussed the legislative history of FOSTA because “FOSTA is unambiguous as to whose conduct triggers the exception to Section 230 immunity.”
The case is Does v. Reddit, Inc., 21-56293.
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